Sheppe v. The Queen, [1980] 2 SCR 22

Supreme Court of Canada

Sheppe v. The Queen, [1980] 2 S.C.R. 22

Date: 1980-03-27

Lea Sheppe Appellant;

and

Her Majesty The Queen Respondent.

1980: March 13; 1980: March 27.

Present: Laskin C.J. and Martland, Ritchie, Dickson, Beetz, Estey and McIntyre JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Criminal law—Charges of conspiracy to traffic in a narcotic and unlawfully trafficking in a narcotic—Conviction for substantive offence of trafficking not precluded by conviction for conspiracy—Convictions not for same cause or matter.

The appellant and one Beeman were jointly charged that between July 14, 1973, and September 12, 1973, at or near the city of Nanaimo, they did unlawfully conspire together, the one with the other, to traffic in heroin. The appellant was also charged in a second count that between September 1, 1973, and September 12, 1973, at or near Nanaimo, he did unlawfully traffic in heroin. The trafficking proved against him, a transaction with Beeman, occurred on September 3, 1973, and was one of five heroin transactions between them. Beeman was also charged with unlawful possession of a narcotic and was acquitted under the principle in Kienapple v. The Queen, [1975] 1 S.C.R. 729, but the acquittal was set aside on appeal by the British Columbia Court of Appeal and a new trial was ordered. Both the accused appealed their conviction of conspiracy but their appeals were dismissed. The appellant’s appeal against his conviction of trafficking was held up pending the disposition of the Crown’s appeal against Beeman’s acquittal of the possession charge. The Court of Appeal rejected the application of the Kienapple principle in setting aside Beeman’s acquittal and, for the same reasons given in that case, it affirmed the appellant’s conviction of trafficking. Beeman’s appeal to this Court on the possession charge was dismissed as moot when the Crown announced that it did not intend to proceed with the new trial ordered by the Court of Appeal. At the same time, this Court gave the appellant leave to appeal the trafficking conviction to enable him to raise the Kienapple principle in respect thereof.

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Held: The appeal should be dismissed.

In Kienapple v. The Queen, this Court was concerned with a single act which gave rise to two different offences, and it held that multiple convictions could not be supported for the same delict or for the same cause or matter or where the same or substantially the same elements entered into two different offences. This Court held further in R. v. Loyer and Blouin, [1978] 2 S.C.R. 631, that the Kienapple principle against multiple convictions did not automatically apply where the accused, charged with two offences, with common elements, pleads guilty to the less serious charge. In such a case the plea should be held in abeyance, pending the trial of the more serious offence. If the accused is found guilty, the plea of guilty to the less serious charge should be struck out and an acquittal entered. If there is a plea of guilty to the more serious charge, an acquittal should be entered on the less serious one. None of these considerations applied here.

The present case was not one where the two convictions were for the same cause or matter or involved the same or substantially the same elements to establish criminality. The trafficking transaction had no element of culpability that was in any way common with the charge of conspiracy which depended on proof of a prior illegal agreement and transcended any dependence on the trafficking transactions.

Sokoloski v. The Queen, [1977] 2 S.C.R. 523; Leroux v. The King (1950), 10 C.R. 294; R. v. Quon, [1948] S.C.R. 508; R. v. Siggins (1960), 127 C.C.C. 409, distinguished.

APPEAL from a judgment of the Court of Appeal for British Columbia dismissing the appellant’s appeal from his conviction on a charge of trafficking in a narcotic. Appeal dismissed.

B.A. Crane, Q.C., for the appellant.

S.R. Fainstein and E.G. Ewaschuk, Q.C., for the respondent.

The judgment of the Court was delivered by

THE CHIEF JUSTICE—The issue in this appeal is whether the principle in Kienapple v. The

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Queen[1] applies to preclude a conviction of an accused for trafficking in a narcotic when he has also been convicted of conspiracy so to traffic and where the substantive offence, charged as a second count to the conspiracy, took place within the conspiracy period and involved the accused’s co-conspirator who was joined in the conspiracy count. It was the contention of the appellant accused that the two counts were alternative only and that the accused could not be legally convicted of trafficking in the particular circumstances of this case once he was convicted (as was his co-conspirator) of conspiracy. The contention is untenable and the appeal fails for the reasons which follow.

The appellant and one Beeman were jointly charged that between July 14, 1973, and September 12, 1973, at or near the city of Nanaimo, they did unlawfully conspire together, the one with the other, to traffic in heroin. The appellant was also charged in a second count that between September 1, 1973, and September 12, 1973, at or near Nanaimo, he did unlawfully traffic in heroin. The trafficking proved against him, a transaction with Beeman, occurred on September 3, 1973, and was one of five heroin transactions between them. Beeman was also charged with unlawful possession of a narcotic and was acquitted under the Kienapple principle, but the acquittal was set aside on appeal by the British Columbia Court of Appeal and a new trial was ordered. Both the accused appealed their conviction of conspiracy but their appeals were dismissed. The appellant’s appeal against his conviction of trafficking was held up pending the disposition of the Crown’s appeal against Beeman’s acquittal of the possession charge. The British Columbia Court of Appeal rejected the application of the Kienapple principle in setting aside Beeman’s acquittal and, for the same reasons given in that case, it affirmed the appellant’s conviction of trafficking. Beeman’s appeal to this Court on the possession charge was dismissed as moot when the Crown annouced that it did not intend to proceed with the new trial

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ordered by the British Columbia Court of Appeal. At the same time, this Court gave the appellant leave to appeal the trafficking conviction to enable him to raise the Kienapple principle in respect thereof.

It is important to note that the conviction of conspiracy of both the appellant and of Beeman was not founded only on the trafficking transaction of which the appellant was also convicted, nor indeed, on the other trafficking transactions between them (although all five transactions provided proof of overt acts in pursuance of the conspiracy). What the trial judge found, on the evidence, was that the two accused had agreed upon a scheme for the distribution of heroin in the Nanaimo area, “a planned common design on agreed terms”, the use of the trial judge’s words. The trial judge said this:

There is no doubt whatever in my mind that these two men knowingly and deliberately embarked on a scheme of distribution of heroin in the Nanaimo area, and implemented it with a considerable degree of financial success during the period alleged in the indictment. This scheme was far more than an occasional purchase by Beeman, the retailer on a rotating credit from Sheppe, the wholesaler, as contended by the defence. There were here financial, joint planning, meetings, private conversations, telephone discussions, all the indicia in short of a planned common design on agreed terms over a period of time to profit from the unfortunate and large scale sale of heroin in the Nanaimo area. There was on all the evidence a continuing and knowing agreement, close association and intent which renders both accused guilty on Count 1, the conspiracy charge.

It is trite law that the gist of conspiracy under our law lies in an unlawful agreement, here to violate the Narcotic Control Act, R.S.C. 1970, c.

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N-1: see Mulcahy v. The Queen[2]; Paradis v. The King[3]; The Queen v. Kravenia[4]. Culpability does not depend on the implementation of the design, although the law in the United States is different in also requiring proof of an overt act: see United States v. Skillman[5]. In Canada, overt acts are admissible evidence to support a charge of conspiracy: see Koufis v. The King[6]; The Queen v. Gagnon[7]. This does not, however, mean that the acts merge into the conspiracy so as to lose their independent character: see Brodie v. The King[8], at p. 199.

The present case does not raise the kind of issue which concerned this Court in Sokoloski v. The Queen[9]. Although on one view of the facts in that case it might appear that a conspiracy could arise from a mere exchange of promises, a contract of sale and purchase of a drug, I read the majority judgment as resting on a prior agreement, although in the implementation thereof a transaction of sale and purchase was carried out. Here, there can be no doubt of the prior agreement, the scheme which the appellant and Beeman concocted and then proceeded to carry out.

Counsel for the appellant conceded that the substantive trafficking offence was not an included offence in conspiracy to traffic but he did urge that it was inconsistent to convict the appellant of both. This is more a plea of unfairness than an argument of law; see The King v. Goodfellow[10], at p. 431; Rex v. Hayes[11], at p. 88. However, even if there was legal merit in it if the one substantive offence was the main piece of evidence from which an inference of a prior illegal agreement was drawn, the present case is far removed from such a situation. The charge of conspiracy was the first count against the appellant and Beeman, followed

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by a count charging trafficking and, on the facts, this was not a case such as that which incurred the criticism of Barclay J. in Leroux v. The King[12] at p. 300 where, in effect, the conspiracy charge was mounted on the back of the charge of a substantive offence.

The law on the point in issue here is the same in England, subject now to the question of the propriety of joinder of conspiracy and the substantive offence, with the Court entitled to put the Crown to an election if joinder is not justified: see Practice Direction, [1977] 2 All E.R. 540. In the United States too, it has been held that there is no double jeopardy involved in a conviction of the substantive offence as well as a conviction of conspiracy to commit it: see Pereira v. United States[13]. There are two exceptions to this in the United States, neither of which has application here. One is where the substantive offence necessarily involves an agreement of two persons to act in concert, e.g. duelling, so that the conspiracy is embraced in the substantive offence. The other is where the prohibited conduct involves two or more persons, e.g. a sale, but prescribes punishment for one only and the other participates only to the extent of establishing the offence: see Corpus Juris Secundum, vol. 15A, p. 765.

In Kienapple v. The Queen, supra, this Court was concerned with a single act which gave rise to two different offences, and it held that multiple convictions could not be supported for the same delict or for the same cause or matter or where the same or substantially the same elements entered into two different offences. This Court held further in The Queen v. Loyer and Blouin[14] that the Kienapple principle against multiple convictions did not automatically apply where the accused, charged with two offences, with common elements, pleads guilty to the less serious charge. In such a

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case the plea should be held in abeyance, pending the trial of the more serious offence. If the accused is found guilty, the plea of guilty to the less serious charge should be struck out and an acquitttal entered. If there is a plea of guilty to the more serious charge, an acquittal should be entered on the less serious one. None of these considerations apply here.

The present case is not one where the two convictions were for the same cause or matter or involved the same or substantially the same elements to establish criminality. The trafficking transaction had no element of culpability that was in any way common with the charge of conspiracy which depended on proof of a prior illegal agreement and, as I pointed out earlier, transcended any dependence on the trafficking transactions. Accordingly, neither The King v. Quon[15] nor The Queen v. Siggins[16], urged by counsel for the appellant in support of the appeal, bear any resemblance to the issues in the recent case.

I would dismiss the appeal.

Appeal dismissed.

Solicitors for the appellant: Braidwood, Nuttall, MacKenzie, Brewer, Greyell & Co., Vancouver.

Solicitor for the respondent: Roger Tassé, Ottawa.